Terms of Service Version: 2.6 Parties Atmail Atmail Pty Ltd ACN 088 876 733 Customer the entity identified as the customer in the Order Form Operative Provisions 1 Definitions and interpretation 1.1 Definitions In this agreement, the following definitions will apply: Account means a sublicence to use the Software, as granted to an End User by the Customer pursuant to this agreement for no longer than the Term and which is restricted by the terms of the End User Agreement. ActiveSync Mailbox means an account maintained by the Software that is activated or otherwise enabled for storage or synchronisation of any personal information management (PIM) information such as email, calendar, contacts or tasks using the ActiveSync Protocol. For the avoidance of doubt, each unique Inbox supported by the Software will constitute a separate ActiveSync Mailbox. ActiveSync Protocol means the Microsoft Exchange ActiveSync Protocol. ActiveSync Protocol means the terms set out in Schedule 2. Terms Overage Fee means an amount which is a pro rata calculation of the Additional User Fee from the date the licence key for the Overage Account is provided until the end of the Current Term. Additional Fees means the fees for any Additional Services. Additional Services means any services to be provided to the Customer which are outside of the scope of the Services. Additional User Fee means the fee per Overage Account as specified in the Order Form. Commercial in Confidence 1 Atmail Branding means the ‘Atmail’ trading name and logo. Atmail Content means: a. the Software; b. any Metadata; and c. any other software, information or materials in any form, developed, created or provided by Atmail or its Personnel in the course of providing the Services (except to the extent any open-source or third-party owned software is incorporated); including all Intellectual Property Rights therein. Atmail Website means the website accessible via https://www.atmail.com/ as amended from time to time. Business Day means a day other than that which is a Saturday, Sunday or public holiday in Brisbane, Queensland, Australia. Category means a type of Account as specified in the Order Form. Claim means any claim, counterclaim, demand, cause of action or proceedings (whether based in contract, tort or statute) and any defence to a claim, counterclaim, demand, cause of action or proceedings. Cloud Storage has that meaning given to the term in Schedule 1. Commencement Date means the first date that the Services will be provided as specified in this agreement, or as notified to Atmail by the Customer as stated on the Order Form. Confidential means all information in relation to a party (Discloser) which: Information a. is by its nature confidential; b. the Discloser indicates is confidential; or c. the receiving party (Recipient) ought to know is confidential; other than information that the Recipient can establish: a. was in the public domain when it was given to the Recipient; b. becomes, after being given to the Recipient, part of the public domain, except through disclosure contrary to this agreement; c. was in the lawful knowledge and possession of the Recipient before it was disclosed to the Recipient, or was otherwise developed independently by the Recipient without reference to or use of any of the Discloser’s Confidential Information; or d. was lawfully received by the Recipient from another entity having the unrestricted legal right to disclose that information without reQuiring the maintenance of confidentiality. Corporations Act refers to the Corporations Act 2001 (Cth) of Australia. Costs means any costs incurred by Atmail in the course of providing the Services or Additional Services, whether on behalf of the Customer or otherwise. Current Term has that meaning given to it in clause 15.2. Customer Branding means the Customer’s trading name, logo, any other marketing trademarks of the Customer, the Customer’s Nominated Product and Services and any publicly available information relating to the Customer. Data Processing means Atmail’s data processing policy as published on the Atmail Policy Website and amended from time to time. Commercial in Confidence 2 Delay Event means an event which is beyond the reasonable control of Atmail and which causes a delay or failure in the performance of Atmail’s obligations under this agreement, including but not limited to: a. any act, delay or omission of the Customer or their agents or other third party which adversely affects Atmail’s capacity to provide the Services; b. unavailability of, or unsuitability of personnel, facilities, materials or third-party software or services required for the Services where Atmail has taken all reasonable steps to find suitable replacements; or c. inclement weather, power failure, earthQuake, cyclone, fire, explosion, flood, landslide, lightning storm, war, invasion, pandemic, sabotage, malicious damage, terrorism or civil unrest, order of any government or government authority or change to legislation, strikes or other industrial disputes. Dependencies means the necessary minimum reQuirements of the Customer or an End User’s software, hardware, configuration and environment (including third-party services) which must be met in order for the Services to be provided, as advised by Atmail from time to time. End User means an individual who has been allocated an Account by the Customer. End User Agreement means the agreement accessible via the Atmail Website as varied by Atmail from time to time. Fees means, as applicable, all amounts payable by the Customer under this agreement, including but not limited to the: a. Licence Fee; b. Overage Fees; c. Additional Fees; and d. Costs. Initial Term means the term specified as such in this agreement, commencing from the Commencement Date. Insolvency Event means any of the following events occurring in relation to a party: a. if an application is filed for the winding up of the party (winding up application) and the winding up application is not dismissed or withdrawn within five Business Days of that application being filed; b. if an order is made for the winding up of the party and the winding up is not stayed indefinitely or terminated within five Business Days of the winding up order being made; c. if the party’s shareholders pass a resolution for its winding up; d. if a receiver, receiver and manager, controller (as defined in section 9 Corporations Act), or similar person is appointed to, or the holder of a Security Interest takes (or appoints an agent to take) possession of, any property of the party; e. if a provisional liquidator is appointed to the party; f. if: i. the party is placed into administration (as defined in section 9 Corporations Act) or enters into a deed of company arrangement (as defined in section 9 Corporations Act); or Commercial in Confidence 3 ii. the party or any other person takes any step towards placing the party into administration or towards entering into a deed of company arrangement; g. if the party: i. advises the other party that it is financially unable to proceed with or meet any of its obligations under this document; ii. without the written consent of the other party, suspends payment of its debts; iii. ceases or threatens to cease to carry on all or a material part of its business; iv. is or states that it is unable to pay its debts as and when they fall due and payable; or v. is taken to fail to comply with a statutory demand under section 459F Corporations Act; h. if the party, without the consent of the other party: i. begins negotiations with one or more of its creditors seeking a general readjustment or rescheduling of its indebtedness to one or more of its creditors; ii. takes any steps toward entering into, or enters into, any compromise or arrangement with one or more of its creditors under part 5.1 Corporations Act; or iii. makes any assignment or enters into any arrangement or composition generally for the benefit of one or more of its creditors; i. if the party: iv. commits an act of bankruptcy under section 40 Bankruptcy Act; or v. is made bankrupt; j. if the party becomes or takes any step that could result in the party becoming an insolvent under administration (as defined in section 9 Corporations Act); k. if the party enters into or takes any step that could result in the party entering into a personal insolvency agreement under part X Bankruptcy Act; l. if the party enters into or takes any step that could result in the party entering into a debt agreement under part IX Bankruptcy Act; m. if execution is levied against the party by a creditor; n. if any matter relating to the party becomes subject to a direction under, or has effect as if it were a direction under, section 14 Australian Securities and Investment Commission Act 2001 (Cth), or to an investigation under, or taken to be under, Australian Securities and Investment Commission Act 2001 (Cth); or o. if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition, unless: i. the event takes place as part of a solvent reconstruction, amalgamation, merger or Commercial in Confidence 4 consolidation on terms approved by the other party before it takes place; and ii. the implementation of the reconstruction, amalgamation, merger or consolidation complies with the terms of the approval. Intellectual Property means: Rights a. all present and future industrial, intellectual or proprietary rights conferred by statute, at common law or in eQuity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trademarks, algorithms, designs, trade secrets, inventions, discoveries, know-how, confidential information, plant varieties and circuit layouts, including any modifications, adaptations and improvements thereto; and b.